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1797.

JOHN NORMAN CROSS Demandant, WILLIAM GREY Tenant, Nov. ed. and ANNE PEAD and Another Vouchers.

give leave to

CLAYTON Serjt. on a former day moved to amend the writ The Court will of entry, mittimus, transcript, and recovery, in this case. amend a misThe premises, as described in the deed to lead the uses, amount- take in the writ of entry in a ed, on being added together, to one hundred and sixty-eight common reacres two roods fifteen poles: in the recovery the parcels were covery. («) described to be two messuages, thirty acres of land, thirty acres of meadow, and thirty acres of pasture, whereas the recovery was intended to be suffered of two messuages, fifty acres of land, fifty acres of meadow, and fifty acres of pasture: the mistake was supposed to have originated with the clerk in the country writing the figures 30 instead of 50; the parties were all alive. It was urged that no inconvenience would arise from this amendment, provided that the increased fine for alienation were duly paid.

The Court directed the parties to apply, in the first instance, to the Alienation Office, and mention the matter again when that was done.

Accordingly it was afterwards brought on again by Clayton, who stated that an application had been made at the Alienation Office, where the practice was to rate a new fine for King's silver, on the whole number of acres, and then make allowance for the money received before, and that there was a precedent in the office of a manor having been added on a similar motion.

But the Chief Justice intimating his recollection of a resolution in the House of Lords, that no original writ could be amended, and wishing to consider to what length the practice of amendments had gone since that time, the case stood over till this day, when being again moved,

EYRE Ch J. I hesitate about granting this motion, because I find a case in the House of Lords, where, on a reference to Lord Holt and the Judges, it was determined that a mistake in a writ of entry could not be amended either by common law or by statute. It is the case of Lord Pembroke, 1 Salk. 52. The practice I understand to be in favour of the amendment. My only difficulty arises from the case I have mentioned; but if my Brothers are satisfied I shall not oppose the amendment.

(4) Vide Ex parte Motley, 2 B. & P. 455. Wheeler v. Hill, 2 B. & P. 560.

HEATH

1797.

CROSS

v.

PEAD.

HEATH J. By Gage's case (a), 5 Rep. 45. and several cases to be found at the end of Piggott (b), amendments of common recoveries are warranted; and during twenty-two years that I have sat here, it has been the constant practice to amend them by the deed to lead the uses.

ROOKE J. By the 8 H. 6. c. 12. original writs may be amended as to mistakes of the clerks. There is a case in Blackstone (c) also, where it was held that if a clerk mistake his instructions the præcipe shall be amended.

(a) In 1 Salk. 53. and Fortescue, 188. Gage's case is said to be misreported, and not law.

(b) Drake and another v. Biddulph, p. 222. Skinner and Others v. Land, p. 228. (c) Vida Watson v. Cox, and Henzel v. Lodge, 2 Bl. 747. and 1065. also 3 Wils. 154.

Leave was given to amend. (d)

(d) Vid. 2 Barnes, 24. and 216. and Jenkinson v. Staples, Cruise, 2 vol. p. 185. where the præcipe and writ of entry in a common recovery were amended. Also Arthur Blackamor's case, 8 Co, 156. 163. and Wynne v. Wynne, 7 Mod. 492. 506. 1 Wils. 35. 42. S. C. Pearson v. Pearson, 1 H. Bl. 73. Winch. 99.

Nov. 23d.

If a defendant

be held to bail

in this country

ment entered

VICTOIRE ADELAIDE FRANCOISE MELAN T. The DUKE de FITZJAMES.

A

RULE had been obtained by Shepherd Serjt. calling on the Plaintiff to shew cause why the bail-bond given for on an instru- the appearance of the Defendant in this cause should not be into in France, delivered up to be cancelled, on the Defendant entering a and by which instrument his common appearance. property only and not his person, was

according to

The affidavit of debt stated, "That the Defendant was justly and truly indebted to the deponent in the sum of 1000l. and upwards (a) on a certain deed, under the hand and seal of France made the Defendant, bearing date the 22d January 1789, made and liable, the Court executed in France, according to the laws there in force, to discharge him and in favour of the deponent."

the law of

on motion will

on his entering

a common ap

By the instrument in question, the Defendant "creates, conpearance. (b) stitutes, promises, secures, and grants to the Plaintiff the sum of 30,000 livres, by way of yearly annuity, &c. which sum the Defendant promises and binds himself to pay to the Plaintiff, at his house, or to the bearer of this present deed, in four equal payments, at the four usual periods of the com

(a) When this was first moved, the Court doubted whether the words " on a certain deed" were a sufficient de

scription of the debt, to hold the Defendant to bail. But this objection was never mentioned again.

(b) But see Imlay v. Ellefsen, 2 East, 455. Mure v. Kaye, 4 Taunt. 35. 40.

mon

mon year, &c. authorizing the Plaintiff to take and levy the said annuity severally upon the property, goods, moveables and immoveables, at present or hereafter to be in possession of the Defendant; who for the better securing the payment of the said annuity, mortgages and renders responsible the whole of the said property, goods, &c. as above stated. This instrument to bear the interest of 10 per cent. according to law, &c. the Defendant promising and binding himself to fulfil the tenor of this deed, under penalty and mortgage of all his property, goods, moveables and immoveables, now or hereafter to be in his possession, and which he submits for that purpose to the restraint of jurisdiction of the Court of Chatelet at Paris, and fully renouncing every thing which may be contrary or injurious to these presents," &c.

An affidavit of a M. D'Outrement was also produced, stating, "That the deponent had been a counsellor of the Parliament of Paris during twenty-five years, and in that character was skilled in the laws of France: and that by the laws of France, and particularly by the 6th article of the 34th title of the Ordinance or Law of 1667, which was in full force when the said deed was made, not only the person of the contractor or grantor was not engaged or liable, but it was not even permitted to the party contracting to stipulate that his body should be arrested or imprisoned by reason of a deed of that sort; and that the only case where a person could be arrested or imprisoned by the laws of France for debt, was upon a bill of exchange, or a commercial engagement; and that in every other case the property only was liable to be seized."

Adair Serjt. now shewed cause. This rule was granted in order to ascertain whether the security in question was that kind of security which imported a remedy against the person of the Defendant, or whether it was only in the nature of a mortgage on his estate. If this be a mere security, affecting the land and personal property only of the Defendant, and if it so appears on the face of it, the Court will attend to that circumstance. But if I can shew that it is a personal security affecting the person and follow. ing it every where, whatever may be the law of France as to the form of proceeding, yet when the party is found in this or any other country, he may be proceeded against according to the rules and practice of the country in which he is resident. The instrument was given for a subsisting debt,and may be called a bond, By it the Defendant binds, first, himself, and then his property.

1797.

MELAN

υ.

The Duke de
FITZJAMES.

1797.

MELAN

บ.

The Duke de

FITZJAMES.

It is therefore in fact a double security. 1st, It is a personal security by which the person is charged. 2dly, It is a charge on the property real and personal of the Defendant. And yet it is contended, that though it has a double aspect it extends only to the property, and not to the person. Indeed the property, which is the subject of this mortgage, being in another country, and subject to the laws of that country only, the sole remedy which the Plaintiff now has is against the person of the Defendant.

Shepherd in support of the rule. The affidavit of M. D'Outrement is confirmed by the comment on the Ordinance of 1667, to be found in the posthumous works of M. Pothier, quarto edit. vol. 7. Cinquieme Partie, chap. 1. "De la Contrainte par Corps," from p. 278. to p. 285.; where it is laid down, that all constraint of the person, even after judgment, on all contracts, (except those which are there specified, and amongst which such a contract as the present is not included), was taken away by the law of 1667. This motion is not made on the ground of privilege; in that case the law of England would proceed according to its own rules. But if the contract was entered into with reference to the laws of France, it is the same thing as if those laws were expressly stated on the instrument. So if a bond is made in France, payable in England, being made with a view to the law of England, that law must prevail, Robinson v. Bland, Burr. 1077. In Talleyrand v. Boulanger, 3 Vezey jun. 447. the circumstances were much of the same nature as in the present case. It was stated in argument, that the Court of Common Pleas had discharged a Defendant on common bail, because his person would not have been liable by the law of France (a). And the Lord Chancellor said, "It would be contrary to all the principles which guide the Courts of one country in deciding upon contracts made in another, to give a greater effect to the contract than it would have by the laws of the country where it took place;" and added, "that he had no doubt that a court of law would upon such grounds discharge a Defendant, upon common bail."

EYRE Ch. J. In cases originating in this country, and wholly governed by the laws of this country, this Court rarely interferes in a summary manner to discharge a party on a common appearance, provided the affidavit of debt is conceived in positive terms; nor will the Court do it in any case unless it sees distinctly that an ill use has been made of the power of holding to bail. It has

(a) Shepherd admitted that he had not been able to find any account of such a case in this court.

been

been very often repeated, and I wish it were more clearly understood, that the Court does not mean to try the question between the parties on these preliminary motions. But it is a very different case when the ground of the debt is a transaction in a foreign country. It does not then originate in our law, but in the law of that country which creates the obligation. That law must be laid before us by evidence; since we do not take notice of it of course. When it is sworn that a party is indebted on a bond or a promissory note, we know what the nature of those instruments is, and the law concerning them; or if for goods sold and delivered, we know that goods sold and delivered may create such a debt. But if the plaintiff swear positively to a debt in this country, and refer to something which renders it ambiguous whether there be a debt or not, the party ought not to be held to bail. Suppose he were to refer to some contract which had the appearance of being equivalent to a bond, and the Defendant were to shew that it raised a demand for damages unliquidated; I think the Court would say, the Defendant may be held to bail upon a special order, but not by the mere force of the affidavit. Apply this reasoning to the case before us. The Defendant is held to bail on a contract made in France, the nature of which we must learn, not from the face of the instrument, but from evidence. There is no reference in it to the laws of this country. It must therefore be shewn what the laws of France are, and that they create an obligation which the laws of England will enforce. What would be a defence there, will be a defence here. The whole therefore turns on the laws of a foreign country. No general rule can be laid down; for whether there be a debt or not does not come within our knowledge, nor indeed that of the party himself, who may be mistaken with respect to the law. I do not know that we have ever done what is now desired of us before; but if it appears that this contract creates no personal obligation, and that it could not be sued as such by the laws of France, (on the principle of preventing arrests so vexatious as to be an abuse of the process of the Court) there seems to be fair ground on which the Court may interpose to prevent a proceeding so oppressive as a personal arrest in a foreign country, at the commencement of a suit, in a case which, as far as we can judge at present,authorizes no proceeding against the person in the country in which the transaction passed. If there could be none in France, in my opinion there can be none here. I cannot conceive that

what

1797.

MELAN

V.

The Duke de
FITZJAMES.

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